ERB Inc., which holds the existing rights to the works of the author of Tarzan and John Carter of Mars novels, claims the comics Lord of the Jungle, Warlord of Mars, Warlord of Mars: Dejah Thoris and Warlord of Mars: Fall of Barsoom are likely to “deceive, mislead and confuse the public” about the source or sponsorship of the content, causing “irreparable injury” to the family-owned company. It also insists the titles were published without authorization after Dynamite Entertainment President Nick Barrucci was told that Dark Horse held the licenses for the Tarzan and John Carter of Mars books.

In its answer to the complaint, filed last week in federal court in New York City and first reported by The Beat, Dynamite points out that the Burroughs works on which the comics are based are no longer protected by U.S. copyright law. As to the trademarks, the publisher notes, “There are numerous examples of Burroughs’ novels, and other works inspired by Burroughs’ novels bearing such alleged marks or similar marks, which have been published by third parties without any reference to” ERB Inc.

“In addition, Burroughs’ public domain novel Tarzan of the Apes has been republished by numerous publishers without any attribution to plaintiff, and the basic story of a jungle-dwelling, Tarzan-like character has appeared in literature and film without any affiliation to plaintiff,” the document states.

Dynamite, of course, asks the court to dismiss the lawsuit, which will likely be watched closely by those concerned with what’s been characterized as an effort to use a trademark to, effectively, prolong the duration of copyright. Read the publisher’s full answer below.

Comments

25 Comments

Companies are required to defend their trademarks, so you can’t blame ERB for sending a cease and desist letter, but a lawsuit is going too far. Whether they like it or not Tarzan and John Carter are in the public domain. They belong to us all now and that’s a good thing. There is a reason that the Constitution restricts copyright duration.

Dynamite clearly thought about their legal rights before they produced these comics. The “Tarzan” trademark is nowhere on that cover. The company did what they had the right to do and should not be unfairly challenged on it. I hope this case gets dismissed.

Buffy

Comic creators are clearly classless. To the ‘original’ creators its always about the money. From Kirby’s family to the Siegel family to Robert Howard and Conan/Red Sonja, to Stan Lee and Conan, to the Walking Dead, to McFarlane/Gaiman, and finally…Marvelman. Money, show me the dough.

We don’t care just write and draw good stories already!

Eric

I love how VERY rare nude covers can cause “irreparable injury” to the brand when all martians are nude in the books. You know, the source material… IMO, the crappy Disney movie is FAR more likely to cause “irreparable injury” than the very good comics. Hell, Dejah Thoris and Red Sonja are two of my favorite comics right now. This SHOULD be tossed but IP law rarely makes any sense in this country. Since Richard Garfield was granted a patent for the CONCEPT of all CCGs, IP laws have pretty much been downhill from there. And another example of “public domain” not meaning a damn thing to anyone anymore.

Huh — I assumed, since the latest issue of DHP has Tarzan’s image on it but not his name, that Dark Horse didn’t have the license. Interesting to hear that they do.

@Buffy: Yes, how dare creators expect to be paid extra when they create something popular. No class.

@Eric: Red Sonja’s kind of a special case as she’s pretty clearly a distinct character from the Red Sonya in Shadow of the Vulture. That said, there’s plenty of fault to find with Paradox Entertainment’s treatment of the Conan copyrights (to wit: there aren’t any). And trademarks create a whole other set of issues — as we’re seeing here, they allow strongarm tactics against anyone who’s using a character who is trademarked but no longer copyrighted.

Patents are really a separate issue — yes, the patent system is a mess, but that’s not really relevant to this story. “IP” is a convenient blanket term for copyrights, patents, and trademarks, but they’re really very different.

The Truth

Sigh…it’s predictable that the first responses are from fanboys defending Dynamite. But on the grounds that these are in the public domain?? Priceless hypocritical BS! Dynamite has been taking characters in the pd and slapping trademark symbols all over them. So they can hardly use “public domain” as an argument. They’re stealing others’ creations as their own. It’s reprehensible. I hope Dynamite loses its shirt in court.

Alton

Oh,well first Before Watchmen and now this.I was really enjoying the revival of classic and pulp era characters coming out of Dynamite,but who knows who’s right here.Time to add this company to the same dump list that DC is on.

Leocomix

(this is for The Untruth) public domain is public domain. Dracula and Sherlock Holmes have been used by big publishers.
The trademark on their products isn’t a trademark on the literary character.
The characters cannot be stealen as they don’t belong to anyone.

public domain is public domain, –after 28 years of no new works, a character, or characters in a novel, film, or comic book, become public domain as of federal u.s. laws. period. plastic-man is an example of DC comics lying and stating they have a copyright, when they refused to publish him for over the 28 year period. so is the ray. -in this “Tarzan” case, dynamite is not using the trademarks, as trademark only covers the title of the book on the cover, not any names used on the inside of a publication. they are using a different name for the titles–so there is no trademark infringement, and zero copyright infringement, as the copyrights are in fact lapsed/ public domain. the E.R.B. family has zero case. they are the ones who refused to publish the characters regularly, or within a 28 year time frame at least, in a new work, in the u.s., thus letting said characters lapse. seems funny to me how they claim to care about them now. they don’t. they just want profit.

Steve

These mediocre Dynamite Burroughs books are another instance of them swiping and exploiting an invalid property (Red Sonja being another example.) They should know better than that, but unforunately they sell this swill to a host of sleazy geeks who can’t afford to buy themselves a Playboy apparently. Three cheers for the ERB Inc family! We want the real deal. And by the way, that is an example of utter ignorance of the Martian series that the women all run around in stripper pasties and thongs– what utter rubbish! In the books a Maritan woman carries a hidden dagger in her robes just to defend herself from dishonor and rape, and if necessary kill herself! Don’t sound like they are the type for the dirty old fart school of comics. What a total distortion of Burroughs’ heroic visions, to turn it into “girlie art.” More power to the rightful Burroughs family.

Buffy, Howard had nothing to do with Red Sonja, that was Roy Thomas’ creation (very) loosely based on Howard’s Red Sonya. Stan Lee had little to nothing to do with the Conan comics beyond sticking on “Stan Lee presents” and letting Roy Thomas do his thing.

MadMikeyD

Public Domain is far more complicated than 28 years of inactivity. You can continuously publish for decades and still have earlier works become public domain (of course, Disney is putting a stop to that). Bottom line on Tarzan and John Carter is, the material Dynamite is adapting was first published in 1912. Anything published before 1923 is public domain in the U.S.

George

This is stupid. Anything before 1923 is public domain. Period. Families and corporations attempting to “protect” these expired properties are clearly in the wrong. I’ve just lost all curiosity and interest in going to see “John Carter” in theaters, or even in renting it when it comes out on RedBox. I downloaded the original novel from Project Gutenberg, but won’t pay a dime to that family. Business in this country is seriously out of line.

ApeManFan

The crux of ERB, Inc.’s argument is that these characters are trademarked. Most of you are confusing trademark and copyright. Only the TEXTS to the original stories are public domain. If Dynamite were strictly publishing illustrated editions of the PD texts, they might have an argument, but books like “Dejah Thoris” have nothing to do with the PD material, and “Dejah Thoris” is a trademark.

Burroughs himself trademarked Tarzan in 1913 so others wouldn’t steal his brainchild. Burroughs’ grandson, who has very warm memories of his loving grandfather, is among the family members who are being cheated out of their rightful royalties. “John Carter,” “Tars Tarkas,” “Barsoom,” and many other characters and concepts are also trademarked.

Batman, Superman, and every other popular comics hero are trademarked. This is no different than if Dynamite were to publish a bootleg “Man of Steel” comic book and claim trademark on that term.

Faust

George

It doesn’t make it right. Just imagine how ridiculous it would be if the great-great grandsons of HG Wells had tripods under trademark, or if the estate of Mark Twain kept Tom Sawyer or Huck Finn, or if some great-great-great-great-great-great-great-great grandson of Cervantes kept Don Quixote. Having warm feelings of your grandfather does not constitute a right to something. Every human being dies someday, and every work of art deserves to go into the public domain at some point. I sincerely hope that the Burroughs estate loses big on this. They’ve had 100 years to reap benefits, and if they don’t have enough now it’s because they’re greedy.

Evan

You are absolutely correct in what you’re saying but what Dynamite is saying is that ERB either never had or the original trademarks lapsed on the name Dejah Thoris and probably Barsoom, as well as the phrase “Lord of the Jungle”. And it would stand to reason they’d check on this very carefully beforehand.

Tarzan and John Carter are CLEARLY still owned and trademarked by ERB which is why those names are nowhere in the titles. As others have said, using the names inside the book is not the same thing.

And of course, any adaptations of books will be purely on books in the public domain. Anything besides that would be completely original.

Evan

The problems that there were with Re-Animator weren’t so much with Dynamite and Seeley but the apparent two people who had created the character, one who allowed Seeley to use him in Hack/Slash, the other who gave permission to Dynamite.

The argument was really between them with everyone else caught in the middle. Notice Seeley and Dynamite have worked together since so the problems were never really between them. They were just both going off the info they both had.

Randy

As I understand it, copyright protection under the old pre-1977 laws currently runs out at the year 1925 since it shifts every year. So anything published in the U.S. before that is considered to be public domain. Everything published after 1925 is still copyrighted so that means that there are still more than a dozen Tarzan novels and at least 5-6 Barsoom (John Carter) novels still owned and controlled by the Burroughs estate. However, with all of the free versions of ERB’s work that’s available in print and digitally as e-books it’s apparent that those horses escaped the barn a long time ago and it seems almost pointless to sue anyone at this juncture.

Alton

@ Steve thanks for the update.Just another reason to drop Dynamite.Too many high quality creator owned properties out there for me to buy to bother with this crap.It’s amazing the number of self appointed public domain experts on this thread who would be first to sue if it was their property.I think Randy was partially right in that not all of ERB has shifted to public domain which could confuse the issue.Remember folks sueing in court with no guarantee of success is your last civil right( if you can afford the lawyers,that is).Patriot act took away the rest.

ApeManFan

We’ll have to agree to disagree on that. If I create an iconic character, I want to retain every right to will that character’s trademark to my heirs. As the creator, that should be my prerogative. Burroughs wanted his family to retain these trademarks. If Twain had possessed the foresight to register “Huck Finn” and “Tom Sawyer” as trademarks, and pass this property on to his heirs, I wouldn’t begrudge him that. It’s no different than creating any family business and passing it on to one’s descendants. It’s Burroughs’ legacy, so why shouldn’t his direct intention receive precedence?

Evan,

The trademarks for Barsoom, Dejah Thoris, and many other of Burroughs’ creations were duly noted on the 1996 packaging of the Trendmasters action figures–I guess Barrucchi missed those. Unlike copyright, trademark never expires.

MadMikeyD

Anything published before 1923 is public domain. Anything after that has numerous things you need to check, and the odds are it’s still under copyright for at least 95 years from publication (soon to be extended again by Disney). As for trademarks never expiring, trademarks can be lost after a period of not being used. A general rule is 7-8 years, but this is not set in stone. 1996 is a little more than 7-8 years ago, so if they let the trademarks fall out of active use after those action figures, a case could be made for the trademark being abandoned. Yes, this case is about trademark, but it’s really about trying to use trademark to keep legally public domain material out of the public domain.

Addendum: I do not claim to be an expert, but I have done a lot research on the public domain. And I have made my own meager characters freely available for anyone to use, ala the Jenny Everywhere model, so there will be no lawsuits from me.

Kevin Ryan

Trademarks may NOT be taken out on public domain works out of copyright, so says the Supreme Court in Dastar vs 20th Century. the Burroughs Estate is very, very wrong. Tarzan is owned by all, and NOT by ERB.